Woolworths Ltd v Maryborough City Council

[2004] QPEC 70

[2004] QPEC 070

PLANNING AND ENVIRONMENT COURT

JUDGE ROBIN QC

No BD1480 of 2004

WOOLWORTHS LIMITED ACN 000 014 675	Appellant
and
MARYBOROUGH CITY COUNCIL	First Respondent
and
ROKAY PTY LTD ACN 098 337 690	Second Respondent

BRISBANE

..DATE 15/10/2004

ORDER

CATCHWORDS:  Objection to production of documents by company served with a "notice" of non-party disclosure - documents said to be confidential and relate to company's trading and methods - appellant adverse submitter a competitor - whether production (concededly available in enforcement proceedings) should be produced - production ordered, subject to a "Fielder Gillespie" order - company was lessee of and conducted its business in premises of the co-respondent "developer".

HIS HONOUR:  This is an application, unusual in my experience, in which the Court reviews a "Notice of Non-Party Disclosure" issued by the appellant to the Warehouse Group (Australia) Propriety Limited seeking production of documents in a schedule including the following:

1. A copy of the full document outlining the nominated party's departments, and subcategories of goods in each department, which was sent to the Ryan Group or Rokay Pty Ltd in about April or May 2003.  A copy of part of the document is attached and marked "A"

1. June 2003 to September 2004.  Monthly sales figures for the nominated party's store at lot 7 (SP107050) 107 Ferry Road, Maryborough ("Premises") for each department and sub-category of goods for the period June 2003 to September 2004

The Warehouse Group, as it was entitled to do, by its solicitor's letter of 8th of October 2004 objected to produce the documents.  That objection has been accepted in respect of the categories of documents sought other than those referred to above.  The way the rules work in the circumstances, if the appellant wished to proceed with its request it was obliged to bring the matter before the Court.  The issue has been whether the documents sought are directly relevant to issues in the appeal.

The notice of non-party disclosure reads as follows:

"The allegation in the pleadings to which the documents are relevant is as follows -

Paragraph 11(b) of the Amended Notice of Appeal states:

The Negotiated Decision Notice contravenes section 3.5.14 of the Integrated Planning Act in that:

i.it compromises the achievement of the desired environmental outcome 1 in section 2.2 of Part 2 of the Maryborough City Plan;

ii.it is inconsistent with the intention in the City Plan for development of Local Area 2 - City Centre in which the site is located;

iii.it is inconsistent with the railyards development area precinct (in which the site is located) in that:

(A) The Warehouse's retailing extends beyond bulky

goods retailing;

(B) it detracts from achieving the intention stated

in respect of sub-precinct 7 (Major Shopping

Complex Precinct);

iv.it is inconsistent with the Railyards Redevelopment Precinct Code in that the Site does not have a positive impact on the streetscape and detracts from the achievement of vehicular and pedestrian linkages;

v.it is inconsistent with the City Plan;

vi.there are insufficient planning grounds to justify the making of the Negotiated Decision;

Paragraph 11(d) of the Amended Notice of Appeal states:

The First Respondent failed to characterise properly the nature of the Second Respondent's use of the Site as being that of an integrated planning unit operating as a whole as a:

(ii) discount department store; or

(iii) shop."

The respondent in the application, represented by Mr Everson, is understandably resistant to producing the documents in question which contain information that it regards, and probably correctly, as commercially sensitive.  Acknowledging that, the appellant/applicant agrees that any production should be protection by a so-called Fielder Gillespie order.
See [1984] 2 QdR 339.

Although Mr Everson has emphasised that his client is not a party in the appeal, it clearly has a common interest with the second respondent in the appeal.  It may be seen as a commercial rival of the appellant.  The second respondent in the appeal is the owner of premises in Maryborough where Mr Everson's client has been trading for some time.  Issues arose as to whether its trading contravenes planning arrangements for Maryborough in accordance with which use as a showroom was permissible.

A certain amount of retail activity may be permitted in respect of such a use but issues arose as to whether groceries and like items were being sold in ways which involved the existing planning approvals being exceeded.

As a result of a negotiated decision notice, the first respondent Council granted the second respondent planning approval to use a 60 square metre area of the Warehouse for what I will call retail purposes.  The underlying appeal complains of that negotiated decision notice and seeks that it be set aside.

These are not enforcement proceedings.  It is a planning case pure and simple.  On that basis Mr Everson seeks to draw a distinction, acknowledging that in enforcement cases in analogous circumstances similar orders of a Fielder Gillespie kind have been made.

I can see no difficulty about accepting that the same approach ought to be taken in a planning case.  The documents in support of the development application to Council which was strenuously opposed by the appellant set out to persuade the Council of the limited extent of the proposed newly approved retail activity.  I think it is obvious that there is a potential for such retail activity to spill out of the confines of the 60 square metres.

The real issue is the nature of the operation to be conducted in the site.  I think it right to presume or to proceed on the presumption that Mr Everson's client has been operating within the parameters of the negotiated decision notice, acknowledging that the appellant may be highly doubtful about that.  I think the circumstances are ones in which what Mr Everson's client has actually been doing, should therefore shed important light on the implications of the use permitted by the negotiated decision notice.

The real player in all of this, in my opinion, is Mr Everson's client, rather than the co-respondent.  It may be noted that they are represented by the same solicitors - the firm is new to the matter in the sense that Rokay Proprietary Limited is a new client.  Mr Everson's is not.  In my view, that change of solicitors may possibly interfere with the present timetable under which the appeal will be determined in the November pool.  That will be resolved at the callover next Monday.

I do not consider, in these particular circumstances, that Mr Everson's client ought to be regarded necessarily in the same way as a genuine stranger to the litigation would be.  The information contained in the documents now sought appears to me to be pretty much of a kind with material which was provided by The Warehouse Group in support of the development application to the Council.  It is appropriate that it be protected in the Fielder Gillespie manner.

The last observation that I would make is that it may well be that on its proper construction, the negotiated decision notice grants an approval which is personal to The Warehouse Group.  As I understand it, it is unusual but established that development approvals may be so limited.  I make an order in terms of the initialled draft.

Could I say one more thing?  The draft attempts to keep up with current developments by requiring, with the parties' agreement, provision of documents to the appellant's expert in electronic form.

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